Guest Post: An Argument For Judicial Activism In Pakistan

A couple of days ago, Bubs wrote a post that criticized the Supreme Court's actions vis-a-vis the carbon tax. Aqdas Afzal, an adjunct faculty member at the Lahore University of Management Sciences, wrote and sent me a rebuttal, not just concerned with the carbon tax but judicial activism in general. Without further ado...
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The restoration of the judiciary as a result of the peoples’ movement for the better part of 2007 and 2008 is a big positive for the Pakistani political system. The restoration of the Iftikhar Chaudhry Court has not only provided a balance between the powers of the state and the society – with the society being successful in this instance – but has also provided a much needed “success story” for the citizens of this country. This success story will provide an optimistic counterpoint not only to the hapless average citizen, who has all but given up on the government but also to the intellectual elite – the brain trust, if you will – who do not tire from harping “something is rotten in the state of [Pakistan].”

The Iftikhar Chaudhry Court has taken a driving seat role in providing relief to the aam aadmi – the common man. Consider, for instance, the very latest pronouncement from the Court in which the Court temporarily stopped the government from charging the recently imposed carbon tax resulting in an immediate relief in gasoline prices for the aam aadmi. In another instance, the Court stopped the National Electric Power Regulatory Authority (NEPRA) from increasing the prices of electricity and has directed the Authority to review its decision to increase prices. The imprint of this new driving seat role can also be seen at the level of the High Courts which have extended their ambit to social policy.

Certain quarters have labelled this driving seat role of the Iftikhar Chaudhry Court as “judicial activism” and have declared it to be detrimental to the stability of the political system. I beg to differ. Having a Court that takes an active position on all matters of economic and social policy is a positive thing, especially within the context of a developing country like Pakistan that has poor-quality institutions. Let’s try to analyze the value of this new driving seat role by looking at the following key questions: What is judicial activism? Is such judicial activism unprecedented in modern democracies? Is judicial activism always good? Is there need for judicial activism in Pakistan?

What is Judicial Activism?

Despite the fact that Prime Minister Gilani recently mentioned that “he believes in judicial activism...”, judicial activism is not always cast in such charitable terms. There is no single agreement on what judicial activism actually is. The term, however, usually refers to a biased interpretation by the court based on its personal beliefs as to what a particular law means as opposed to the interpretation of an un-biased, informed and neutral observer. The term also refers to instances in which superior courts make social and economic policy, that is, when judges “legislate from the bench.” In other words, though there is no consonance of views on what actually constitutes judicial activism, it usually has a negative connotation and represents a situation in which courts take an active position on economic and social matters.

However, judicial activism should not be confused with the role of the Supreme Court of Pakistan as the final interpreter of the constitution. This final interpretation is called judicial review. The constitution, through section VII, allows for specific powers of judicial review for the Supreme Court of Pakistan. This means that the Supreme Court may strike down any law passed by the National Assembly that the Court find’s unconstitutional. The Supreme Court has been regularly playing its constitutional role by assessing the constitutionality of laws passed by the National Assembly.

Judicial activism, then, is activism from the bench that goes beyond the day-to-day judicial review. Imbued with activist leanings, judges may pass verdicts that speak to the needs and interests of a population that is not being served by its government – due to inefficiency, corruption or disconnectedness. Activist judges may also pass verdicts which may not be popular but conform to the standards of fairness and justice. For instance, an activist Supreme Court in Pakistan may one day order the assimilation of government and private schools so as to not keep creating a semi-educated underclass. An activist Supreme Court may one day also address issues involving social and distributive justice and seek to analyze the viability of land reform in this country. In short, judicial activism is not judicial review. It goes beyond, whereby judges take a driving seat role in making economic and social policy.

Is Judicial Activism unprecedented in Modern Democracies?

In the United States, the Supreme Court has, from time to time, catered to the interests of the US population by coming out with verdicts that would have been impossible to implement politically – Roe v. Wade, I think, would be the best example of that. Moreover, the Court has really stayed ahead of the curve as far as protecting criminals from self-incrimination under duress (police torture) by guaranteeing protection through the Miranda rights.

The Supreme Court of Israel is considered one of the most activist courts in the world. For two decades the Supreme Court in Israel has consistently come out with “activist” rulings that were just, if politically unpopular. For instance, the Supreme Court in Israel consistently entertains appeals from Palestinians that seek recourse against the excesses of the Israeli Defence Forces (IDF).

Across the border, the Indian Supreme Court also has a tradition of judicial activism. The Court has recently accepted to hear a petition against the Delhi High Court’s setting aside of a law pertaining to criminalizing same-sex marriage.

Is Judicial Activism Always a Good Thing?

No. Judicial activism is not always the best thing for chiefly three reasons: First, those who oppose judicial activism argue that by engaging in activism, courts transgress on a turf that is not theirs’ to begin with. Social and economic policy making is, it is argued, is the sole province of the elected branch of the government – the legislature. Unelected judges, it is argued, have no legitimate right to overrule or strike down the policy choices of elected representatives.

Second, exercising judicial activism and preventing an elected government from making appropriate economic or social policy subverts the process of accountability inherent in a democratic form of government. Faced with an activist court, any elected government can divert blame on its ineffectiveness to that of an “activist” and “meddlesome” judiciary. Thus, it can be seen that there is some inherent tension in having an activist court as it often questions an elected government’s economic and social policy choices.

Last, judicial activism is a slippery slope. Judges need to tread very carefully in taking activist stands on matters of economic and social policy. Such caution is important as riding roughshod over the legislature or the executive will invariably create institutional gridlock. This gridlock if unresolved will have the potential to push the entire political system towards a collision - something we have seen happen all too often in this country.

Is there need for Judicial Activism in Pakistan?

Absolutely. Nearly all stipulations about the supremacy of the legislature in economic and social policy making, assume a minimum level of efficiency and transparency in the institutions of governance in a democracy. The situation in Pakistan is far from that. Both corruption at the lowest level and rent-seeking at the highest make Pakistan a tough place to survive for the aam aadmi. According to Transparency International, the civil society organization that leads the international fight against corruption, Pakistan ranks 134 out 180 countries in the Corruption Perceptions Index (CPI) released for 2008. The National Corruption Perception Survey (NCPS), carried out by the local chapter of Transparency International, shows that Police is no. 1 on the list of corrupt institutions in Pakistan.

The general dissatisfaction with ineffective and corrupt government is ubiquitous in Pakistan. There is a huge disconnect in this country between the rulers and the ruled. The rulers, perhaps, do not understand the daunting challenges the aam aadmi faces in the daily cycle of 24 hours. Either that or the elected representatives are unable to look beyond their myopic personal interests. To quote the editorial that appeared in The News on July 8, 2009 “ [t]he people have no spokesman. Leaders have repeatedly failed to act on their behalf.” Albert O. Hirschman, a leading intellectual, wrote in his Exit, Voice and Loyalty (1970) that a population’s dissatisfaction with its government can be ascertained through exit (emigration) and voice (protests). It would tautological to mention that both have gone up exponentially in this country.

Therefore, against the backdrop of an inefficient, corrupt and disconnected government that conveniently forgets to deliver on pro-poor policy promises like price relief for the most basic food commodities – relying on the politically expedient cash transfers program, instead – the courts have taken on a very important responsibility on their shoulders. Through judicial activism, honest, conscientious and hard working judges can force this government to be efficient, honest and in-sync with the broader interests of the nation.

In sum, then, judicial activism has a negative connotation and carries the potential of bringing the business of the state to a grinding halt. Nonetheless, judicial activism becomes a necessary evil in countries like Pakistan where governments are inefficient, corrupt and disconnected. Speaking figuratively, the Iftikhar Chaudhry court is the veritable Atlas carrying the weight of the world on his shoulders. Eventually, our future is a function of the choices we shall make as a society. We must, however, not let this Atlas shrug.